Admin Law Notes 1

Admin.
Law Parvathi Bakshi

JGLS | 2015-2020
Subordinate Legislation:
• Executive has a role in bringing forth the law made by the legislature
• When reviewing parent act, we are reviewing whether it is delegated or
conditional legislation
• Legislation cannot give all of its powers
• Whether the delegation is a good one or bad
• Does the legislature have the competency to delegated certain powers
DELEGATED CONDITIONAL
• Law making power given to the • Executive doesn’t make any rules
executive • When to apply the law and where
o They exercise expertise, to apply the law
technicality, specialisation • E.g. AFSPA
over specific matters • In this, the subordinate authorities
o Parliament is over- are not delegated to legislate.
burdened • It is contingent and conditional. It
o Flexibility is only a time factor. Upon
o Confidentiality reaching certain time or
• Standard of review is higher than circumstance, the readymade Act
that for conditional legislation (legislated by supreme legislative
o Review of parent act itself authority) is put into force.
o Review of the laws or • The subordinate authorities
rules made by the cannot use their discretionary
executive power. It is their only duty to
apply the law after fact finding
(e.g. to inquire whether facts
requiring operation of the Act
exist).
• The conditional legislation
delegate’s power is that of
determining when a legislative
declared rule of conduct shall
become effective.
Article 73 of the Constitution
Ram Jewaya Kapur v. State of Punjab

– Indian Constitution has not recognized the doctrine of separation of powers in its
absolute rigidity, but the functions of the different parts or branches of the
governments have been sufficiently differentiated. The only validity of the
Admin. Law Parvathi Bakshi
JGLS | 2015-2020
doctrine of separation of powers is in the sense that one organ should not assume
the essential functions of the other.
– On the other hand, the language of article 162 clearly indicates that the powers of
the State executive do extend to matters upon which the state Legislature is
competent to legislate and are not confined to matters over which legislation has
been passed already. The same principle underlies article 73 of the Constitution.
– Our Constitution, though federal in its structure, is modelled on the British
Parliamentary system where the executive is deemed to have the primary
responsibility for the formulation of governmental policy and its transmission into
law
– But a counter argument would be that, this case was decided on purely executive
functions not on executive rule making authority. Thus the principle underlying
73 and 162, while applicable to purely executive functions is not so with respect
to rule making authority of executive. This is also why this discussion was not
raised in In re Delhi laws.
Rule of Law: Law should govern a nation rather than an individual (formal rule of
law).
Supremacy of the Law: Government under strict legal rules. No discretionary power
with the government.
Equality before the law: Law is same for everyone and such law must be
administered by ordinary courts of law. No special law or court for special groups or
individual.
Pre-dominance of legal spirit: If an individual’s rights are taken away, such rights
are to be enforced by the courts.
Formal Rule of Law Substantive Rule of Law

• The standard of review isn’t as strict • There is a stricter standard
• Gives rise to the ultra vires model • It gives rise to the rights-centric
where review is done of model
administrative action • Whether the discretionary power
• On the basis of whether exercise of which are exercised are derived from
power by the executive goes beyond a parent act
power delegated to it i.e. ultra vires • Principle of natural justice
the parent act • India follows this (ADM Jabalpur)
1. ADM Jabalpur v. Shivkant Shukla

JGLS | 2015-2020
President declared emergency due to internal disturbances. And promulgated the

amending ordinances which was replaced by the Maintenance of Internal Security
(Amending Act). The question which was raised being:
Whether a WRIT petition under art.226 before a HC is maintainable to enforce
the right to personal liberty during an emergency declared under clause(1) of
art.359 of the constitution? If such a petition is maintainable, what is the scope of
judicial scrutiny in view of presidential order?
– No person shall be deprived from his life or personal liberty except according to
procedure established by law
– The scope of Art.359(1) restricts right to move to SC and HC
– No person has any locus standi to move any writ petition u/art.226 to challenge
the legality of an order of detention on the ground that the order or direction to
challenge the legality of an order of detention on the ground that the order is not
under or in compliance with the Act, or was illegal or was vitiated by mala fides
factual or legal or ir based on extraneous consideration.
– Khanna J. Dissenting: Art.21 was misinterpreted. The power of President to
suspend all FRs should have effect on or from the date on which it was passed, but
not enforced on prior date.
– Even in the absence of Article 21 in the Constitution, the State has got no power
to deprive a person of his life or liberty without the authority of law. This is the
essential postulate and basic assumption of the rule of law and not of men in all
civilised nations. Without such sanctity of life and liberty, the distinction between
a lawless society and one governed by laws would cease to have any meaning.
– This case was overruled recently by D.Y. Chandrachud
2. Field v. Clarks 1982

POTUS had the power to suspend the provisions of an act relating to the duty free
introduction of certain goods, as per an McKinley Tariff Act of 1890. In this case,
there was no delegation of power since "what the President was required to do
was simply in execution of the act of Congress”.
3. Panama Refining Company v. Ryan 1935

NIRA, 1934 authorized the president to prohibit shipment in interstate commerce
of petroleum produced in excess of quotas fixed. Court held that ability to
delegate legislative powers to other branches of government is one that Congress
specifically does not have, to sustain the democratic system of government.
4. In Re Delhi Laws Act AIR 1951 SC 332

(Kania, minority judgment) – legislative authority can delegate its functions if it
stands the three tests:
(i) must be a delegation in respect of a subject or matter which is within the
scope of the legislative power of the body making the delegation,
(ii) such power of delegation is not negated by the instrument by which the
legislative body is created or established, and
JGLS | 2015-2020
(iii) does not create another parallel legislative body

– Abdication need not be a complete surrendeer of powers
(Fazl Ali) – distinction between legislative and executive action cannot be bottled
up in watertight compartments; while the legislative cannot delegate their power
to make laws, they can delegate the power to change or modify the law in a
certain way as to the applicability in the local territory in which the executive
functions. The legislature cannot abdicate the legislative function completely so as
to form a parallel legislature to act as the rule making body. If the legislature
retains for itself the power to dismantle the agency it has created and form a new
agency in place of it has retained its legislative power. Delegated legislation is a
necessity; the amount of laws that legislature must make means that it does not
have the time to fine-tune the nitty-gritties of each. Power of modification and
restrictions is the same as the power to apply or adapt the law. Any modification
must be made within the framework and the policy of the act and should not
subvert its structure or essential purpose. Henry VIII clause – inserted in Acts
which enabled the Ministers to modify the Acts if it was necessary to bring it into
operation. The doctrine of Delegates non potest delegare was held not applicable
due to the absence of principle-agent relationship between the Parliament and
people.
(Mukherjee) – Indian system of governance is based on the British parliamentary

system and strictly speaking, cannot have a clear separation of powers. Delegation
of legislative authority could be permissible but only as ancillary to, or in aid of,
the exercise of law-making powers by the proper legislature, and cannot be
misused by the legislature to relieve itself of its responsibility. Delegation of the
essential legislative powers to an outside authority amounts to a virtual abdication
of its powers, in excess of the limits of permissible delegation.
5. Queen v. Burra –
While the Judicial Committee has pointed out that the Indian Legislature had
plenary powers (expressly limited by the Act of the Imperial Parliament which
created it) to legislate on the subjects falling within its powers and that those
powers were of the same nature and as supreme as the British Parliament, they do
not endorse the contention that the Indian Legislature, except that it could not
create another body with the same powers as it has or in other words, efface itself
had unlimited powers of delegation .
When the argument of the power of the Indian Legislature to delegate legislative
powers in that manner to subordinate bodies was directly urged before the Privy
Council in each one of their decisions the Judicial Committee has repudiated the
suggestion and held that what was done was not delegation but was subsidiary
legislation or conditional legislation.
6. Jatindra Nath Gupta v. Province of Bihar

JGLS | 2015-2020
7. Hamdard Dawakhana v. UOI
Is the delegation constitutional in that the administrative authority has been

supplied with proper guidance. In our view the words impugned are vague.
Parliament has established no criteria, no standards and has not prescribed any
principle on which a particular disease or condition is to be specified in the
Schedule. It is not stated what facts or circumstances are to be taken into
consideration to include a particular- condition or disease. The power of
specifying diseases and conditions as given in s. 3(d) must therefore be held to
be going beyond permissible boundaries of valid delegation.
The court held that this power given to the executive was not in consensus with
the objective of the act (self-medication). Therefore the delegation is
impermissible. We are of the opinion therefore that the words " or any other
disease or condition which may be specified in the rules made under this Act "
confer uncanalised and uncontrolled power to- the Executive and are therefore
ultra vires. There needs to be legislative policy as mentioned above^ and there
also needs to be standards to guide the policy making by the legislature which the
executive can follow. Definite boundaries are to be set and administrative
discretion is to be exercised within those limits.
Doesn’t explicitly say conditions need to be specific – it’s something we infer
8. Gwalior Rayon Co v. Asst Commr of Sales Tax

The legislative policy is to fix the rate of sales tax to a minimum of 10% to avoid
evasion and discourage interstate sale of goods to unregistered dealers. Central
govt. is incapable of coming up with a precisie amount of local sales tx, so
determination of such tax is not abdication of legislative power but sufficient
guidelines must be provided in the act for the executive.
Two general guidelines or the legislative policy – a) prevent tax evasion, b)
discourages sale to unregistered sellers.
Khanna J on “standard test” = when the legislature confers rule-making powers on
an administrative authority it must lay down the desired policy, principle, standard
or guidelines that are to be followed by the concerned body.
Mathew J, minority opinion on “abdication test” = essential legislative functions
cannot be delegated and the legislature cannot abdicate its principle duty to
delegate. As long as the legislature can repeal the provision/the Act that confers
the power on the delegate, the legislature does not abdicate its powers. (not a
sufficient test).
Doesn’t explicitly say conditions need not be specific – (we infer this)
Ø Art. 265 – No tax shall be levied or collected except by authority of law i.e.
the legislature. Indian constitution doesn’t make a distinction between the
JGLS | 2015-2020
legislature and the executive (Ram Jeevay Kapoor – executive can take any
action without legislative action)
Ø Exception to art.73 and Art.162 (executive can act without legislative
sanction). In case of taxing, executive cannot fix a tax without legislative
sanction, because it is required under Art.265.
Ø When it comes to tax, there is a primacy given to the legislature and thus it can
be argued that the standards should be much stricter. However Khanna did the
opposite by stating that the standards ought not be specific.
9. Corporation of Calcutta v. liberty Cinemas,
– The primary issue which the court had to decide upon was whether fixing of the
rate of tax could be delegated to Corporation of Calcutta without any pre-
condition, such delegation was questioned on the ground that the delegation of
such authority amounted to delegation of essential legislative function, which was
not permissible. The Court largely followed its decision in Pandit Banarsi Das’s
case, and further added that fixing of an upper limit of tax only created a limit and
not a standard. The Court opined that the requirement of revenue for the
Corporation was a valid standard.
– First is the fee a tax? (If yes then it is guided.) Fee works on quid pro quo basis.
Quid pro quo here is not found therefore it is a tax and comes under Art. 265.
– Sarkar – used Pandit Banarsi Das, to say that there is no constitutional bar,
provided there is legislative sanction, in giving the executive the said power.
There must be again a legislative policy, and there must be standards.
– Banarsi Das was not concerned with fixation of tax. It was a case where the issue
was on what subject matter, and therefore on what persons, the tax could be
imposed. Between the two we are unable to distinguish in principle, as to which is
of the essence of legislation; if the power to decide who is to pay the tax is not an
essential part of legislation, neither would the power to decide the rate of tax be
so.
– Takeaway from Calcutta Corp: as long as there is a need for the money and the
needs can be justified by the executive, then a sweeping delegation can be given
to the executive.
10. Pandit Banarsi Das Bhanot v. State of MP

– Berar Sales Tax Act for tax on sale of construction goods. Schedule which lays
down the items, which are included in the list i.e. items on which tax is levied.
The state govt. has the authority to decide the list.
– Aiyer – it is not unconstitutional to allow the executive to determine which item
or person is to be taxed or not.
– The authorities are clear that it is not unconstitutional for the legislature to leave it
to the executive to determine details relating to the working of taxation laws, such
as the selection of persons on whom the tax is to be laid, the rates at which it is to
JGLS | 2015-2020
be charged in respect of different classes of goods, and the like. Court said there is
nothing wrong in the executive deciding the rates (orbiter). Inspite of Art.265,
certain powers can be delegated to the executive.
11. Devi Das Goapala Kishnan v. State of Punjab

– East Punjab general sales tax act S.5 of the act says subject to the provisions, there
shall be levied on the taxable turnover every year of a dealer a tax at such rates as
the Provincial govt. may by notification direct i.e. fix rate of sales tax. S.5
challenged on ground it is unguided delegation to the executive.
– During petition, the amendment act. Of 1952 came up – S.5 amended to:
o After the words “rates” the following words to be inserted and shall have
retrospective effect “not exceeding two piece in a rupee” (A maximum
limit was provided)
– Court says S.5 as it stands un-amended would have been unguided – but the
amendment fixes the rate. The discretion laid down by the legislature i.e.
limitation between 1% to 2% is proof of guidance to the executive. (The
legislature puts down a range of tax)
– The Supreme Court opined that it was not unconstitutional for the legislature to
leave it up to the executive to determine details regarding the working of a tax
because the executive receives the authority to amend the provisions from the
statute itself. Here, interestingly the Supreme Court claims that the statute
provides the standards required for delegation.
12. M. K. Papiah & Sons v. The excise Commissioner

– It was the policy of the Act both to raise revenue and to discourage consumption
of liquor by making the price of liquor sufficiently high, and that- that 'would
serve as a guidance to fix the rates of excise duty.
– If the legislature preserves its power and retains perfect control, through the
ability to repeal the legislation and withdraw the authority and discretion it had
vested in the Government at any time, it will not amount to an abdication of
legislative power.
– However, in Gwalior Rayon, court held that the fact that the legislature had the
power to repeal an enactment was not proof that it retained enough control over
the authority making the subordinate legislation. Dissenting opinion by Mathew in
Gwalior was the majority opinion here. (Gwalior had rejected ‘Abdication test’)
– Interestingly, in an instance wherein the government was allowed to create rules
for taxation, with the only pre-condition of laying it before Parliament, Mathew J.,
speaking for a united court stated that so long as the rules were laid before the
legislature, it was valid delegation- he agreed to the inability of the legislature to
ensure a stricter control on the executive owing to the changed nature of State.
– The legislature may also retain its control over its delegate by exercising its power
of repeal. As long as the legislature can at any time repeal the legislation and with
draw the authority and discretion it had vested in him, and, therefore the
JGLS | 2015-2020
legislature did not abdicate its functions. We, therefore, think that the power to fix
the rate of excise duty conferred on the government by s. 22 of the Act is valid.
13. Harishankar Bagla v. State of MP

– The appellant Harishankar Bagla and his wife, were arrested by the Railway
Police, on the accusation that they were transporting “new cotton cloth” from
Bombay to Kanpur, without any legal permit. Requirement of permit was a
reasonable restriction under 19(1)g. Talking about what powers can be delegated
the court held that, the two essential functions of the legislature cannot be
delegated: determination or choice of legislative policy, and of formally enacting
that policy into a binding rule of conduct. Moreover, repealing or abrogating an
existing law is an essential legislative power.
– S.3(1) of Essential Commodities supply act – the central govt. so far as it appears
necessary or expedient for maintaining of increasing supplies of any essential
commodity, or for securing their equitable distribution and availability at fair
prices, may by order provide for regulating or prohibiting the production, supply
and distribution thereof and trade and commerce therein…
– S.6 any order made under s.3 shall have effect notwithstanding anything
inconsistent there with contained in any enactment other than this Act or any
instrument having effect by virtue of any enactment other than this Act.
– To challenge S.6 – if executive made law is given overriding effect than law made
by the legislature, then it amounts to repealing or amending the law made by the
legislature.
– Section 6 does not repeal any law i.e., does not remove any law from statute book
or abrogate them, it just allows the executive to by-pass an existing law. The old
laws exist with the order at the same time. Even if it is repeal it is done by S.6 and
not by the executive order.
14. Raj Narain Singh v. Chairman
– When the Executive selects any part or section of an enactment to extend to an

area, it must not, by such selection, alter any essential feature of or effect any
change in the policy of the enactment considered as a whole.
– S.3(1)(f) of the Patna admin act - Empowers the delegated authority to pick any
section it chooses out of the Bihar and Orissa Municipal act and extend it to Patna
with such “restrictions and modifications”.
o Allows Patna admin to subvert authority of the Bihar and Orissa municipal
act. Picking up one section from an act amounts to modification. The
portion you choose may actually be incoherent with the objective of the
act.
o Just as the whole act cannot be modified to bring an essential alteration in
the act or change the legislative policy, the same rule applies in case of a
JGLS | 2015-2020
part of it. Actually allowing admin. to amend the law when they extend the
law.
o It follows that when a section of an Act is selected for application, whether
it is modified or not, it must be done so as not to effect any change of
policy, or any essential change in the Act regarded as a whole. Subject to
that limitation we hold that section 3(1)(f) is intra vires.
15. Lachmi Narain v. UOI

– S. 2 of the Union Territories (Laws) Act, 1950 empowered the Central
Government to extend by notification in the official gazette, to any Union
territory, or to any part of it, with such restrictions and modifications as it thinks
fit, any enactment in force in a Part A State. (Power of extension and discretion to
make “restrictions and modifications” is an integral constituent of extension)
– In 1951, the Central Government, in exercise of this power, extended by a
Notification the Bengal Finance (Sales Tax) Act, 1941, to the then Part State of
Delhi with certain modifications in s. 6.
– The words “restrictions and modifications” do not cover such alterations as
involve a change in any essential feature of the enactment or the legislative policy
built into it. (excessive delegation)
o Only those, which are necessary to bring the extended enactment into
operation and effect. As are required to adjust, adapt and make the
enactment suitable to the local conditions.
– The alteration sought to be introduced in s. 6(2) by the 1957-Notification goes
beyond the scope of the “restrictions and modifications” permissible under s. 2 of
the 1950-Act, because, it purports to change the essential features of s. 6(2) and
the legislative policy inherent therein.
– Section 6(2) before the issue of the 1957-Notification, requiring the Government
to give “not less than 3 months' notice” of its intention to add to or omit from or
otherwise amend the Schedule to the 1950-Act, embodies a determination of
legislative policy and its formulation as an absolute rule of' conduct could be
diluted, changed or amended only by the legislature, in the exercise of its essential
legislative function, which could not be delegated to the Government.
Removal of difficulties clause: in pursuance of legislative policy of act, the

executive reserves the power to modify the act in order to remove and doubts with
respect of the legislative act. (Modifying parent act – is it allowed?)
– If the executive is allowed to modify the parent act, they can in fact amend the
parent act, in the guise of a modification
– You save unnecessary litigation but the power of modification becomes a power
to amend.
– “Henry VIIIth clause”
JGLS | 2015-2020
16. Jalan Trading Co. v. Mill Mazdoor Union 17. Gammon India Ltd. v. UOI
S.37(1) of the payment of bonus act empowers S.34 of the Contract labour (regulation and
central govt. by order to make provision, not abolition) act, 1970
inconsistent with the purposes of the act for If any difficulties arises, the central govt. may make
removal of difficulties or doubts in giving effect such provisions as appears necessary not
to the provisions of the act. inconsistent with the provisions of the Act as
Legislative policy – liability upon employer to appears to it to be necessary or expedient for
pay bonus to employees removing the difficulties
Shah, Wanchoo and Sikri Ray: there is already a precedent (Jalan) –
– Such kind of delegation is not permissible under attempted to distinguish on fact
Indian law – Power in Jalan was a power which could be
– The section authorizes the govt. to determine for used to tamper with the legislative policy
itself what the purposes of the act are and to – In the present case, it is a power with the
make provisions for removal of doubts or internal regulation of the govt. and not the
difficulties (finality) people who are being affected by the act.
– Normally it is for the legislature to remove that – Jalan would apply even on internal functioning
doubt or difficulty. of the admin.
– Power to remove the doubt or difficulty by
altering the provisions of the act, would in
substance amount to exercise of legislative
authority and that cannot be delegated to an
executive authority.
– If the executive tries to bring about an
amendment or tempers with the legislative
policy it remains open to judicial review.
– Such a clause cannot be included
Minority:
Apprehending, however, that in the application of
the new Act doubts and difficulties might arise and
not leaving their solution to Courts with the
attendant delays and expense, Parliament has
chosen to give power to the Central Government to
remove doubts and differences by a suitable order.
In Gammon India Ltd. v. Union of India, a similar provision was held constitutional
by the Court. Distinguishing Jalan Trading Co., the Court observed: “In the present
case, neither finality nor alteration is contemplated in any order under Section 34 of
the Act. Section 34 is for giving effect to the provisions of the Act. This provision is
an application of the internal functioning of the administrative machinery.” It,
therefore, becomes clear that after Jalan Trading Co., the Court changed its
view and virtually overruled the majority judgment.
JGLS | 2015-2020
18. D.N. Ghosh v. Additional Sessions Judge – The court ruled that if it is the
legislative body which has created the offence and prescribed the penalty but has
delegated the power to executive to apply or not to apply such provision or apply
them in a suitable manner within the limits imposed as it required. To this extent,
the delegation of power is a permissible delegation.
Control of Delegated Legislation
19. Atlas Cycles v. State of Haryana

– S.3(6) of the essential commodities act, 1955 – parent act allows central govt.
makes but every order by central govt. has to be tabled before the parliament.
– Central govt. comes up with a notification which fixes a maximum selling price of
iron and steel
– Person is being prosecuted under the new law declared by the notification, and the
question is whether the notification is binding?
– Non-laying doesn’t mean that the notification is not yet binding (it is binding)
– Use of word “shall” doesn’t automatically make it mandatory
o Whether the provision is mandatory for the executive to follow, it is
contextual, and matter of statutory interpretation (mandatory or directory)
– Consideration for regarding a provision as directory:
o In absence of any provision for the contingency of a particular provision
not complied with or followed
o Serious general inconvenience and prejudice that would result to the
general public if the act of the govt. or an instrumentality is declared
invalid for non-compliance with the particular provision.
– This is a case of simple laying and not laying with resolution, therefore it is not
mandatory.
20. Dwarka Nath v. Municipal Corporation of Delhi

S.23(1) of the Prevention of Food adulteration act, 1954
Power of the central govt. to make rules after consultation with the committee, make
rules restricting the packing and labelling of any food and the design of any such
package or label with a view to prevent the public of the purchaser being deceived or
misled as to the character, quality or quantity.
Rule 32: there has to be mandatorily a batch number and code number
The requirement of batch & code number is substantive ultra vires
The batch no. and code no. doesn’t fulfil the requirement of informing the consumer
of the character, quality or quantity to the consumer.
21. V. Sudeer v. Bar Council of India

If the parent Act is repealed or invalidated, the delegated legislation made thereunder
automatically falls to the ground. In this case, the power of Bar Council of India to
make the rules were not traceable under any of the relevant provisions of the
JGLS | 2015-2020
Advocates Act 1961 after the amendment. Therefore, the rules framed by the Bar
Council of India went beyond its statutory functions and thus, were held to be ultra
vires and inoperative at law.
Procedural Ultra-vires
• Publication
o Antecedent publication: printing of draft rules
§ Often draft rules are published in the official gazette
§ S. 23 of the General Clauses Act suggest that in case no procedure
is mentioned in the parent act, then draft rules are to be published
in the gazette, Objections and Suggestions are to be sought from
the public within a date and such suggestions and
recommendations are to be considered (not binding).
o Post-natal publication: publishing of final law in gazette (must be done) –
this is how to bind people
§ Publication of rules/regulations in the official gazette
§ Sometimes the parent act provides for a special procedure for
publication which must be complied
• Consultation
Govindlal patel v. The agricultural produce market

Mere use of ‘may’ or ‘shall’ will not be a conclusive proof to determine whether a
section is mandatory or directory. The meaning and intention of the legislature
must not be only ascertained from the phraseology of the provision. Due
consideration should also be given to the nature of the provision, its design and
the consequences which would follow from construing it in different ways. If the
language of a statute is clear and precise then further enquiry may not be required.
In this case, it was held that non-publication of rules, or any defect in publication,
affects their legal validity. Publication is necessary for dissemination of
information, because violation of an Act leads to penal consequences.
Harla vs. State of Rajasthan

An Act that has not been published, cannot be said to be a valid law.
The government passes an act regulating the amount of opium that can be purchased
but it did not publish the same. A person was convicted under this act. The court held
that this was against the principles of natural justice and by not publishing the act, the
act is ultra virus.
• The mere passing of the Resolution of the Council without further publication or
promulgation of the law was not sufficient to make the law operative and the
Jaipur Opium Act was not therefore a valid law.
JGLS | 2015-2020
• Natural justice requires that before a law can become operative it must be
promulgated or published. It must be broadcast in some recognizable way so that
all men may know what it is; or at least there must be some special rule or
regulation or customary channel by or through which such knowledge can be
acquired with the exercise of due and reasonable diligence.
• Harla suggests that Post Natal Publicity is mandatory even when not provided in
the Parent act as it is a question of Natural Justice.
• Later, Union of India v. Ganesh Das Bhojraj, AIR 2000 SC 1102 suggested that
Publishing in the official Gazette is sufficient Post-Natal Publication. No further
requirement of publishing exists
Raza Buland Sugar Co. Ltd. v. Municipal Board, Rampur, AIR 1965 SC 895
The second part of the section is, however, merely directory.
What it substantially requires is that the publication should be in Hindi in a local
paper, and if that is done that would be compliance with s. 94(3). In the instant
case publication was made in Urdu in a local paper which on the evidence seems
to have good circulation in Rampur. There is no regularly published local Hindi
newspaper. There was, in the circumstances, substantial compliance with the
provisions of s. 94(3) in this case.
22. Banwarilal v. State of Bihar

S. 59(3) of the Mines Act, 1952: Before the draft of any regulation if; published
under this section it shall be referred to every Mining Board which is, in the
opinion of the Central Government concerned with the subject dealt with by the
regulation, and the regulation shall not be so published until each such Board has
had a reasonable opportunity, of reporting as to the expediency of making the
same and as to the suitability of its provisions.
S. 12 of the Mines Act, 1952 establishes the Mining Board. Government came up
with Coal Mines Regulations of 1957.
Das Gupta, J.:-
Coal Mines regulation were struck down as Consultation with the Board was
Mandatory, as sufficient opportunity must be given to the board to come up with
report regarding expediency of the rules.
Whether consultation with the Mining Boards constituted under the provisions of
the Mines Act, 1923, would be sufficient compliance with s. 59 (3) Of the Mines
Act , 1952 cannot be decided because of lack of information whether such board
was functioning at the time of the regulations.
23. Naraindas v. State of Madhya Pradesh

JGLS | 2015-2020
– Madhya Pradesh Prathmik Middle School Tatha Madhyamik Shiksha (Pathya

Pustakon Sambandhi Vyavastha) Adhiniyam, 1973. Section 4(1) empowered the
State Government to prescribe text-books according to syllabi laid down under s.
3. The consultation with Board of Secondary Education was required.
– Petitioner claimed that though there was a notification for approval of certain text
books passed, there was no consultation with the board.
– It is settled law that where the validity of an order depends on the fulfillment of a
condition precedent and there is a recital in the order that the condition precedent
is satisfied, the presumption arises in favor of the satisfaction of the condition
precedent and the burden is on the person challenging the satisfaction of the
condition precedent to prove that in fact the condition precedent was not satisfied.
– The recommendations in regard to the text books were made by the Chairman of
the Board. There is nothing in the Act or the regulations, which says that
consultation with the Chairman would be tantamount to consultation with the
Board. The consultation, which Government had before issuing the notification
dated 24th May, 1973 was consultation with the Chairman and not with the Board.
24. Chintaman Rao v. State of Madhya Pradesh (unconstitutional Parent Act)
– Central Provinces and Berar Regulation of Manufacture of Bidis (Agricultural

Purposes) Act, 1948. The Deputy Commissioner may by notification fix a period
to be an agricultural season with respect to such villages as may be specified
therein.
– The Deputy Commissioner may by general order which shall extend to such
villages as he may specify, prohibit the manufacture of bidis during the
agricultural season. Subsequently an order was issued forbidding all persons
residing in certain villages from engaging in the manufacture of bidis during a
particular season.
– The object of the statute, namely, to provide measures for the supply of adequate
labor for agricultural purposes in bidi manufacturing areas of the Province could
well have been achieved by legislation restraining the employment of agricultural
labor in the manufacture of bidis during the agricultural season without
prohibiting altogether the manufacture of bidis. As the provisions of the Act had
no reasonable relation to the object in view, the Act was not a law imposing
"reasonable restrictions" within the meaning of cl. (6) of Art-19 and was therefore
void.
25. M/S Dwarka Prasad v. State of UP (DL Unconstitutional)
– Cl. 4(3) of the Uttar Pradesh Coal Control Order, 1953, the licensing authority has
been given the power to grant or refuse to grant, renew or refuse to renew,
suspend, revoke, cancel or modify any license under this Order and to record
reasons for the action he takes. Not only so, the power could be exercised by any
JGLS | 2015-2020
person to whom the State Coal Controller may choose to delegate the same, and
the choice can be made in favor of any and every person.
– License is for stocking, selling, stocking for sale of coal.
– The provision of cl. 4(3) of the Uttar Pradesh Coal Control Order, 1953, must be
held to be void as imposing an unreasonable restriction upon the freedom of trade
and business guaranteed under art. 19 (1) (g) of the Constitution and not coming
within the protection afforded by cl. (6) of the article.
26. Himmat Lal v. Commissioner of Police

– The right to hold a public meeting should be subject to control of appropriate
authority as it has been in practice before independence. However, such authority
should not be vested with absolute control in a way that the authority gets to
decide and control what views or expression are communicated in public places.
– Rule 7: No public meeting with or without loud- speaker, shall be held on the
public street within the jurisdiction of the Commissionerate of Police, Ahmedabad
City unless the necessary permission in writing has been obtained from the,
officer authorized by the Commissioner of Police.
– The right to hold public meeting in a public street is a fundamental right and r. 7,
which gives an unguided discretion dependent on the subjective whim of the
authority to grant or refuse permission to, hold such a meeting, cannot be held to
be valid.
– Delegated legislation was ultra vires the constitution.
State of MP vs Tikamdas (Retrospective application of DL) - There is no doubt that

unlike legislation made by a sovereign legislature, subordinate legislation made by a
delegate cannot have retrospective effect unless the rule-making power in the
concerned statute expressly or by necessary implication confers power in this behalf.
The provision regarding subordinate legislation does contemplate not merely the
power to make rules but to bring them into force from any previous date. Therefore,
antedating the effect of the amendment of Rule IV is not obnoxious to the scheme nor
ultra vires Section 62.

BS Yadav vs State of Haryana - Governor of Punjab U/A 309 of the Constitution
had made rules for the service of Judicial Officers. Rule 12 of these rules was
amended to apply retrospectively. Governor is allowed to make retrospective rules
U/A 309. But such rules must have a rational nexus with the date of retrospective
operation. In this case it was arbitrary.

JGLS | 2015-2020
AV Nachane vs UOI - Previously, a settlement was entered with the employees

regarding payment of bonus. Subsequently that settlement was abrogated by an
ordinance. But this Court had enforced the settlements in D. J. Bahadur case. Rule 3
(application of no profit or bonus giving) operating retrospectively cannot nullify the
effect of the writ issued in D. J. Bahadur's case which directed the Life Insurance
Corporation to give effect to the terms of the 1974 settlements relating to bonus until
superseded by a fresh settlement, an Industrial award or relevant legislation. These

rules in so far as they seek to abrogate the terms of 1974 settlements relating to bonus,
can operate only prospectively, that is. from February 2, 1981 the date of publication
of the Rules. Rule 3 of the rules regarding bonus cannot make the writ issued by this
Court nugatory in view of the decision of this Court in Madan Mohan Pathak v.
Union of India.

Miss Raj Soni vs Air Officer In-Charge - Raj Soni was appointed as a teacher in a
school governed under the Delhi Education Code which fixed the retirement age at 60
years. The Delhi Education Act came in 1973 following which the Delhi Education
Rules were published which fixed the retirement age at 58 years. Raj was made to
retire at the age of 58 years. Raj Soni was still governed under the Delhi Education
Code.

UOI vs VD Dubey – When V got recruited in 1958, there was no rule on
Superannuation. Rule 2423-A was introduced in 1976: Those who retire after
31st March 1960 are entitled to superannuation. Later, the rule was amended:
Superannuated benefits are available only to those whose recruitment rules provide

for it. V retired in 1986 and claimed superannuated pension. The railways claimed
that recruitment rules in 1958 didn’t carry any provision for superannuation. The 1976
rule cannot have retrospective effect.Persons who retire from service after 31.3.1960
form a class by themselves irrespective of their entry in service.

Rule 2423- A IREC would apply to those categories of employees who have retired
from service after 31.3.1960 for adding requisite number of years to their qualifying
service, to claim the pensionary benefits. Amendment cannot have retrospective effect
in respect of person already in service but would be prospective; it would be
applicable only to those candidates appointed after the date of the amendment
introducing the proviso. Therefore, the provision which states that the concession be
JGLS | 2015-2020
admissible only if the recruitment rule provides so, would operate only prospectively.

Legislation can make laws having retrospective effect, but such power is not inherent
in DL. It must be expressly or impliedly authorized by the legislature. The date of
retrospective application must have a rational nexus with the rules. Entitlement to a
right is allowed by retrospective operation of DL. A class of persons can also be
identified for entitlement. Divestment of an accrued/vested right cannot be allowed by
retrospective application of DL. It can only be done prospectively.

Unreasonability/Arbitrariness

– In India there is no separate ground as such for Un-reasonability or Arbitrariness,
because of the presence of Article 14 and 19 (reasonable restrictions) of the
Constitution.
– In the UK, it exists separately as propounded by Lord Russel, CJ in Kruse v.
Johnson, (1898) 2 QB 91:
– Partial or Unequal application of law
– Manifestly unjust
– Mala-Fide
– Oppressive interference with rights that no justification can be found in a
reasonable mind.

Indian Council of Legal Aid vs Bar Council of India - Rule 9 of bar Council of
India rules stated that those who had attained the age of 45 years on the date of
application for enrolment is barred from getting enrolled. The rationale was to ensure
the standards of legal professionals and it was contended that those who have already
spent most part of their lives in other professions cannot be deemed to maintain the
standard of the profession. It was held that the Rule was Ultra-Vires to Section 24 and
section 49 of the Advocates Act, 1961 as Section 24 does not allow the BCI to debar a
person who is otherwise qualified under the act. The purpose of S. 49 is to lay down
rules about professional conduct etc., after enrolment and not pre-enrolment. The rule
is arbitrary and unreasonable and therefore violative of Article 14 of the Indian
Constitution. It shuts the door for those who wants to enter the profession after the
age of 45 years which cannot be a class in itself. There can be a lot of people who
have chosen to take up different jobs for various reasons but wants to join the
profession later. This rule bars them all. There is also nothing to establish the nexus
between the classification and the object of the rule as the BCI cannot prove how
standards of profession is maintained by debarring this class of people.
ADMINISTRATIVE DISCRETION
JGLS | 2015-2020
Administrative Discretion is a statutory power conferred on a public authority to

make a choice out of available alternatives based on certain considerations.
– Judicial review of admin action means review by Courts of administrative
action with a view to ensure their legality
– Review is different from appeal, where the latter permits the Court to go into
the merits, and the former doesn’t as well as it doesn’t substitute it’s opinion
for that of the administrative authority
– The Courts merely enquire whether the administrative authority has acted
according to the law or not.
1. Control at the stage of delegation of discretion: by adjudicating
upon the constitutionality of the law under which the powers are
delegated with reference to the fundamental rights.
2. Control at the stage of exercise of discretion:
a. Abuse of discretion
b. Non-application of mind
c. The principles of natural justice not follower
Abuse of Discretion
Ø Mala fide – a power is exercised fraudulently if its repository tends to achieve an

object other than that for which the power was conferred.
Pratap Singh v. State of Punjab – The Court used the phrase malafide for
initiating administrative action against an individual “for satisfying a private
or personal grudge”. Petitioner a Civil doctor who was removed from service
by the CM, alleged that the CM did so out of vengeance for not yielding to his
illegal demands. The SC accepted the contentions and held the exercise of
power to be malafide.
Ø Improper purpose – as distinguished from malafide, improper purpose may not be

with malice and the action may be bona fide yet if it is not contemplated by the
relevant statute, it maybe set aside. Public power cannot be used for purposes
other than that which was given.
Hukum Chand v. UOI - Where a power is required to be exercised in a

certain way, it should be exercised in that manner or not at all, and other
modes of performance are necessarily forbidden. It is all the more necessary to
observe this rule where the power is of a drastic nature and its exercise, in a
mode other than the one provided, will be violative of the fundamental
principle of natural justice.
Ø Colourable Exercise – Under the guise of power conferred for one purpose, the
authority is seeking to achieve something else, which it is not authorised to do
under the law in question.
JGLS | 2015-2020
HD Vora v. State of Maharastra - The power of requisition is exercisable by

the government only for a public purpose, which is of a transitory character. If
the public purpose for which the premises are required is of a perennial or
permanent character from the very inception, no order can be passed
requisitioning the premises and in such a case the order of requisition, if
passed, would be a fraud upon the statute by a permanent character.
Though the act of requisition was of transitory character, the government in
substance wanted the flat for permanent use, which would be a ‘fraud upon the
statute’.
Ø Irrelevant Considerations – The authority is not expected to take irrelevant

factors into consideration. A discretionary power must be exercised on relevant
and not on irrelevant or extraneous circumstances i.e. power must be exercised for
the purpose for which it was granted, taking into account the considerations
contemplated for by the Statute.
Test: “The requirement is to know that an irrelevant factor was taking into
account. It may not be enough that the authority was aware of this factor, but also
show influence of it.”
Ram Manohar Lohia v. Bihar – Petitioner was detained under the Defence of
India Rules, 1962 to prevent him from acting in a manner prejudicial to the
maintenance of “law and order”, whereas the rules permitted detention to
prevent subversion of “public order”. The court struck down the order as, in its
opinion, the two concepts were not the same, “law and order” being wider
than “public order”.
Ø Leaving out relevant considerations – Just as the administrative authority cannot

take into account irrelevant or extraneous considerations. Similarly, if the
authority fails to take into account relevant considerations, even then the exercise
of power would be bad.
Asha Devi v. Shivraj – Court observed that if material or vital facts which
would influence the mind of the detaining authority one way or the other, are
not placed before or are not considered by the detaining authority, it would
vitiate its subjective satisfaction rendering the detention order illegal.
Ø Unreasonableness – If the power is exercised unreasonably, there is an abuse of

power and the action of the authority will be ultra vires. Unreasonableness covers
a multitude of sins. Unreasonableness is similar to arbitrariness. An action is
arbitrary when no reasonable person could have acted in that manner (it also
results in discrimination).
Wednesbury’s Doctrine: The principle of reasonableness

JGLS | 2015-2020
Associated Provinical Picture House v. Wednesbury – Irrationality or

unreasonableness as a ground of judicial review was developed. According to
the Wednesbury Principle, the scope of judicial review would be limited. For
judicial review to be allowed, either of the 4 conditions must be satisfied:
(a) the order was contrary to law;
(b) relevant factors were not considered;
(c) irrelevant factors were considered;
(d) the decision was one which no reasonable person could have taken.
Interference is permissible when it is found that the decision was illegal or

suffered from procedural improprieties or was one which no sensible decision
maker could, on the material before him and within the framework of law,
have arrived at.
– In the present case, the defendants imposed the following condition in their
license: "No children under the age of fifteen years shall be admitted to any
entertainment, whether accompanied by an adult or not."
– Mr. Gallop, for the plaintiffs, argued that it was not competent for the
Wednesbury Corporation to impose any such condition and he said that if they
were entitled to impose a condition prohibiting the admission of children, they
should at least have limited it to cases where the children were not accompanied
by their parents or a guardian or some adult. His argument was that the imposition
of that condition was unreasonable and that inconsequence it was ultra vires the
corporation.
– Lord Green: When an executive discretion is entrusted by Parliament to a body
such as the local authority in this case, what appears to be an exercise of that
discretion can only be challenged in the courts in a strictly limited class of
case…..When discretion of this kind is granted the law recognizes certain
principles upon which that discretion must be exercised.
– Mr. Gallop did not, I think, suggest that the council were directing their mind to a
purely extraneous and irrelevant matter, but he based his argument on the word
"unreasonable," which he treated as an independent ground for attacking the
decision of the authority; but once it is conceded, as it must be conceded in this
case, that the particular subject-matter dealt with by this condition was one which
it was competent for the authority to consider, there, in my opinion, is an end of
the case.
– If it is what the court considers unreasonable, the court may very well have
different views to that of a local authority on matters of high public policy of this
kind. The effect of the legislation is not to set up the court as an arbiter of the
correctness of one view over another, thus the ultimate arbiter on such a question
of conditions is not the court.
Doctrine of Proportionality (Strict Scrutiny)

JGLS | 2015-2020
– It requires the court to judge whether the action taken was really needed as well as
whether it was within the range of course of action that could reasonably
followed. Proportionality ordains that administrative measure must not be more
drastic than it is necessary for achieving the desired result.
Om Kumar v UOI – ‘Proportionality’ is a more liberal approach towards

determining the fate of administrative orders. It aims to “maintain a proper
balance between the adverse effects which the legislation or the administrative
order may have on the rights, liberties or interests of persons keeping in mind
the purpose which they were intended to serve”.
However, to check on disciplinary cases, the court cannot apply
proportionality test as it hinders on Article 14; they can only apply the
Wednesbury Principle.
– Reasonable restrictions under Article 19(2) to (6) could be imposed on the

freedoms u/A.19() and it is for the Court to consider the proportionality of the
restrictions. In Chintaman Rao v. State of UP, ‘reasonable restrictions’ should
not be arbitrary or of an excessive nature, beyond what is required for achieving
the objects of the legislation.
PRIMARY REVIEW SECONDARY REVIEW

Where an administrative action was Where an admin. action is challenged
challenged under Art. 14 as being u/art.14 as arbitrary, the question for the
discriminatory, the question for the court court will be whether the administrative
is to determine the correctness of the order was ‘rational’ or ‘reasonable’ and
level of discrimination applied and then apply Wednesbury principle. Thus
whether it is excessive and whether it has the court is confined only to a secondary
a nexus with the object intended. role and will only have to see whether the
administrator has done well in his
primary role.
Acting under Dictation: The authority exercises its power under dictation of a
superior authority and doesn’t consider the matter itself.
Commissioner of Police v. Gordhan Das Bhanji – The Commissioner had
granted a license but later cancelled it on the direction of the state govt. The
court held the cancellation to be invalid as it had come from the govt. and the
commissioner was merely action as an agent of the govt.
Imposing fetters on discretion (self-imposed rule): Where the authority imposes

fetters vide policy on it’s own exercise of power. There is a failure to exercise
discretion on the part of that authority. What is expected from the authority is that it
should consider each case on its merits and decide by applying his mind.
JGLS | 2015-2020
Non-application of mind: The authority should not act mechanically but with care,
diligence, caution and responsibility. Where a resolution was passed by the BCI
referring the complaint of the Committee in a routine manner, it without forming an
opinion that there was a prima facie case, it was found that it was mechanical and
there was no application of mind.
JGLS | 2015-2020
PRINCIPLES OF NATURAL JUSTICE
Those fundamental rules, the breach of which will prevent justice from being seen, to
be done. The aim is to secure justice and to prevent miscarriage of justice.
Classification of Administrative Function:
– Lis – is a dispute between two parties

– Quasi Lis – judge himself is a party to the dispute
– In legislative functions – no PNJ
– In Executive functions – no list/quasi life but PNJ applies here (by virtue of
precedence)
– Judicial functions – quasi judicial function
o Lis/quasi list (judge is a party to the dispute)
o Not bound by its precedent (not a court of record)
o Not bound by the rules of evidence/procedural laws. But PNJ has to be
followed
– By virtue of precedence, judicial functions of the admin. also includes the duty to
act judicially
– Judicial functions performed by executive, whether there is a lis/qusi lis or duty to
act as such, without which it would be purely executive.
Ridge v. Baldwin
In a case of criminal conspiracy charge against 3 police officers, the court observed
that they were negligent, yet the watch committee adjudicating on the matter
dismisses them. The question arose as to whether it is a purely executive function of
the watch committee. It was found that the watch committee had bypassed the internal
enquiry condition (where officers had a right to hearing i.e. PNJ), and dismissed the
officers directly on the court’s observations. While the dismissal may have been
purely administrative post the enquiry stage, the committee itself had not provided a
right to hearing and has failed to exercise judicial application of mind, thus there is no
compliance with PNJ. Natural justice will also apply to administrative actions in
discharge of administrative functions and not only to judicial functions
performed by the administrative.
Dr. Bina Pani v. State of Orissa – Dr. Bina Pani challenged the decision of the
committee instituted to fix her DOB, alleging that she has a right of representation,
since it was a decision which affected her rights. The order of state was in derogation
of her vested right of retiring at a certain age (entitled right but can’t avail of it right
now).
The ratio being that a party to whose prejudice an order is intended to be passed is
entitled to a hearing applies alike to judicial tribunals and bodies of persons invested
JGLS | 2015-2020
with authority to adjudicate on the matter. Duty to act judicially is implicit in the
exercise of the function.
A.K. Kraipak v. UOI – “These rules operate in areas not covered by any law validly
made. In other words they do not supplant but supplement the law.”
– Selections made from officers in the Forest Department of the State of Jammu and
Kashmir to the Indian Forest Service. A person who was a candidate himself
was on the board (by virtue of being the Chief Conservator of Forests) and
participated in the deliberations, specifically at the time the names of his
rivals were being considered. Ultimately the same candidate was selected
over his rivals. To uphold the rule of law, administrative bodies are bound to act
judicially which is merely a requirement to act justly and fairly, and not in an
arbitrary or capricious manner. Factors to determine whether a power is
administrative or quasi-judicial:
o nature of the power conferred;
o persons on whom it is conferred;
o framework of law conferring the power;
o consequences ensuing;
o manner in which the power is expected to be exercised.
– However, even after careful consideration of these factors, it may not be possible
to classify an action as strictly administrative or judicial. Duty of the executive
extends beyond a mere mechanical application of the law.
– There was no vested right to qualify in the Indian Forest services but they had a
right to equality (interview)
– Interviewing candidates is purely administrative but it effects rights of individuals
– Thus PNJ is being extended.
JGLS | 2015-2020
AUDI ALTERAM PARTEM NEMO JUDEX IN CAUSA SUA

– Right to fair hearing – Cannot be a judge in his own cause
– Fortescue, J.: The first Hearing of Human – BIAS – A predisposition to decide for or
History was given in the garden of Eden. Even against one party to a suit or in favor of an
God Himself didn’t pass a sentence upon outcome without proper regards to the merits
Adam, before he was called upon to make his of the case
defense. – It need not be an actual predisposition/bias to
vitiate an administrative decision – just the
– Notice: chance/possibility of bias – need not be an
Denial of Notice and an opportunity to respond actual instance.
may vitiate an administrative decision. – Test: If the circumstances create an
apprehension of a reasonable likelihood of
– Disclosure of evidence to the Other Party - The bias, that is sufficient as a vitiating factor.
other party has a Right to know the evidence o Real likelihood of bias or real danger
against him. An administrative decision based (actual bias). The Court looks at the
on an evidence which the other party is not impression which would be given to
aware of or reasonable opportunity has not the other people.
been given to him to rebut such evidence is o Reasonable suspicion of bias is where
vitiated by non-compliance with PNJ. no person should adjudicate in anyway
if it might reasonably be thought that
– Opportunity to rebut the evidence: he ought not to act because of some
Cross Examination:- Never meant as an personal interest.
integral part of PNJ. If denial of Cross-
Examination results in certain prejudice to the
Other party then it becomes a part of natural
Justice.
– Right to present the case and evidence by the

Other Party (Dr. Bina Pani)
– One who hears must decide
– Reasoned decision or speaking order:

An Order must contain reasons in support of it.
A party has a right to know not only the result
of an enquiry but also the reasons in support of
the decision.
Requirement of reasons are either provided in
the statute or inferred.
The reasons recorded by the administration are
always open to judicial Scrutiny.
Should stand the test of legality, fairness and
reason at all the higher appellate forums
JGLS | 2015-2020
Pecuniary Bias:
Mohapatra v. State of Orissa – Where an assessment committee was in charge of

selection of books for govt. schools, it was found that members of the committee were
publishers themselves, thus it was vitiated by pecuniary bias due to the apprehension
of financial interest on behalf of the committee members.
Official Bias: It is a predisposition of the administration in favour of a decision it had

already taken. A post decisional hearing can be challenged since it was already pre-
decisive and the committee was pre-disposed to rule in a particular way. E.g.
Suspending a student right away and then after the suspension holding a hearing
which results in suspension. It especially applies to cases where the govt. is pre-
disposed to a policy is has adopted.
Gullapalli 1 (Subha Rao) – Subject matter/departmental bias.
– The government was discharging a quasi-judicial act with respect to deciding on

the approval of the motor transport nationalization scheme, and the objectors (Y)
should have been heard personally rather than through the Secretary of Transport
(X).
– The statute in this case laid down a procedure for filing objections, after which the
government would finally decide whether to approve the scheme. Procedure
followed in this case was vitiated by bias since, it was heard by the person who
was instrumental in the implementation of the scheme. Hence, the scheme was
quashed.
o X decides a policy
o Y objects and suggests recommendations to the policy
o X listens to the those objections raised to the policy and the legality of
the objections
– (Sinha and Wanchoo dissent) – Departmental bias did not occur in this instance
because the decision of the State Government was not judicial or quasi-judicial
but administrative in nature. In order for a decision to be judicial or quasi-judicial
it must be objective, and an evidential analysis must be done by a determinate
authority which does not have the right to delegate its judicial function. There was
no objective test laid out in the statute and the only requirements needed were if
the scheme was efficient, adequate and economic.
Gullapalli II - Chief Minister heard the objections this time and then approved the
scheme again. Secretary is head of department which means he is part of the
department. However, the CM is only concerned with disposal of the business of the
department, therefore his proximity is not that close as that of the Secretary. The rule
against bias cannot be applied blindly. Wasn’t official bias because Minister who
reviewed is not integral to the department (which is bullshit)
JGLS | 2015-2020
If Gullapalli 1 is not a good law, shouldn’t have been decided in favor of Mr. Rao
• official bias is a very problematic ground, ought not to be a ground to
challenge policy, because maybe the people who draft are the best to review
recommendations and secondly if there is a official bias then differentiate
between person who objects and person who makes
• Why did they accept official bias (it’s 1959) – Doctrine of necessity was
missing from the jurisprudence – which is an exception to the principle of bias
But following Gullapali 1, Gullapali 2 is also wrongly decided

• no qualitative diff. with 1 and 2 on facts
• should have been decided for petitioner
Personal Bias:
– Personal relationship
DK Khanna v. UOI 1973 HP 30, - Vitiating factor found where a candidate was
the father-in-law of the IAS officer in Selection committee.
Maneklal v. Prem Chand AIR 1957 SC 425 - In a case where the petitioner was
facing an allegation of professional misconduct, the enquiry commission was
headed by a senior advocate, who had been counsel for the complaining party.
The test thus laid down was whether the litigant could reasonably apprehend that a
bias is attributable to a member of the tribunal. The order of committee was
quashed on the ground that the petitioner was successful in proving the bias
present in the acquaintance between the senior advocate and complaining party.
– Personal Hostility
Mineral development limited v. State of Bihar AIR 1960 SC 468
• The CM under whose instance my license is being cancelled – I opposed the

CM in the last general elections – CM lodged an FIR of criminal defamation
against me during the last elections – when the police were harassing me and
the court shifted my defamation suit from a court in Bihar to Delhi
• There was deemed to be an instance of personal hostility but that means the
company can violate any ground and not be charged because there is an
instance of personal hostility thus company get away with anything.
• Even if that question of fact is proved (there is bias), is it justified for the court
to strike down the cancellation.
JGLS | 2015-2020
– Judge witness combination
State of UP v. Mohammad Nooh AIR 1958 SC 86 – In a case of forgery of a

police constable and enquiry was conducted by the DSP and found the constable
guilty. The constable appealed to HC u/Art. 226 for bias as the DSP became a
witness in the case i.e. the chairman of the committee based the decision on his
own evidence. However it was overruled by SC since jurisdication u/art.226
couldn’t be invoked due to no retrospective applicability.
– Judge Prosecutor Combination
Partha sarathy v. State of Andhra Pradesh AIR 1973 SC 2701 – Where Deputy
Secretary and employee had sustained tensions and the former leveled charges
against the latter, also constituting a committee headed by himself, it becomes
vitiated due to judge prosecutor combination.
– Judge in his own cause – it is the most quintessential form of personal bias
Exceptions to the application of Nemo Judex in Casua Sua:
Doctrine of Necessity: It is an exception to the principle of bias, even if there is a

reasonable presumption of bias.
– Cases of absolute necessity
– Lack of any suitable alternative
– Statutory requirement (argument for govt.)
– Doctrine of necessity can apply without satisfaction of second condition (Ashok
Kumar)
Election Commission v. Dr. Subramanian Swamy 1996 SC 1810
– Dr. Swamy complained to the governor that Ms. Jayalalithaa is disqualified

u/s.9A of the RP act, as she has an outstanding contract with the govt. of Tn.
– U/a 192(2) the governor must decide according the opinion of the Election
Commission.
– The litigant claims likelihood of personal bias against the CEC
– Art. 324 requires EC consists of Chief election commissioner and 2 other election
commissioners (constitutional mandate) – they cannot exclude the CEC in
whatever decision they make. (they couldn’t prove there is no suitable alternative
– i.e. other two ECs are present)
– When there is a reasonable likelihood of bias, can the govt. claim necessity?
– The court held that since there is a reasonable likelihood of bias, the two other
election commissioners may decide. BUT if the 2 election commissioners disagree
and are unable to make a decision, then the govt. can claim necessity.
JGLS | 2015-2020
Tata Cellular v. UOI AIR 1996 SC 30
– For installation of cellular phone services, tenders were invited in 4 states

– There is a statutory requirement that the constitution of the tender evaluation
community must have the Director General of DOT
– The person who was DG of DOT, his son also submitted a tender
– If there is a statutory requirement, the onus for finding a suitable alternative is
much higher.
– SC drew a distinction between “reasonable suspicion” and real likelihood of bias
– The nexus of the officer and his son in the chain of decision making was quite
remote. Thus the allegation of bias could not be sustained merely on suspicion,
even if reasonable.
Ashok Kumar Yadav v. State of Haryana
– It was observed by the Court that the presence of the chairman and other members
in the selection process doesn’t necessarily vitiate the selection of candidates. It
was observed that they withdrew from the interview when their relatives appeared
as candidates. Also, the marks in written examinations of the other candidates
were not disclosed to them, which militates against the ground that they pushed
the high scoring candidates interview marks down and allowed their candidate’s
marks up.
– While A.K. Kraipak’s case is certainly a landmark judgment and holds that a
member of selection committee shall entirely withdraw from the selection process,
it cannot be the principle of law that a member of a Public Service Commission
must completely withdraw himself from the selection process if their relatives are
candidates.
– That would make functioning of the commission impossible as there cannot be
any substitute of such members in conducting the selection process. What is
required is that they don’t take part in the interview of their relatives or take part
into any discussion w.r.t the merits or marks of the candidates.
– There is no statutory requirement that the chairman be a part of the interview.
– The court accepted the administrative impracticality argument thus statutory
requirement is not a necessary condition to invoke doctrine of necessity.
Application of PNJ
Ø At enquiry (hearing)
Ø Enquiry
Ø Enquiry – applies at first and 3rd stage
JGLS | 2015-2020
EQUITY
– Parallel system to law which functioned on the system ubi jus ibi remedium (For
every wrong, the law provides a remedy)
– Promissory Estoppel & legitimate expectations are two principles of equity
PROMISSORY ESTOPPEL
Promissory estoppel comes in conflict with contractual concept of consideration.

• The rule is, that contract w/o consideration isn’t a contract
• It is an exception to the rule since it enforces a promise without consideration
• It is applicable on a government (complex because legislative policy cannot be
changed)
Requirements:
1. Promise
2. Intended to create a legal relationship OR to affect an existing relationship
3. Promisor can reasonably believe that such promise can be acted upon
4. Such promise is in fact acted upon to put the promisor in a position
detrimental to his interest
Limited application Extended application

– Only applies to a promise when there – PE is an independent cause of action
is a pre-existing legal relationship – There is an argument that it shouldn’t
– Only apply as a defence have extended application – because
– The underlying legal relationship is it goes against the rule of enforcing a
the COA promise without consideration
– Proprietary interest ( PE to be COA) – In India the courts have allowed
extended application of PE in all
instances
M/s Motilal Padampat Sugar Mills v. State of U.P. AIR 1979 SC 621
– Court is enforcing an equitable principle against the govt. (Bhagwati J.)

– A newspaper article comes out in newspaper – National Herald
– The secretary has been quoted that – whoever starts a new industrial
manufacturing unit, within the State of U.P., shall be given a tax holiday starting
from date of manufacturing, continuing for 3 years.
– Reading this, Motilal Padampat, sends a letter to Director of Industries of State to
start manufacturing Vansvati (Saturated fat)
– Director writes back, agreeing, stated that it was a policy decision
JGLS | 2015-2020
– Company meets the Chief Secretary (who at the time was highest head of State,
since President’s rule is going on), who gives them assurance
– Company requests for a categorical assurance and the CS writes back with a
confirmation
– A new CM was elected and the deputy director of industries, serves a letter to the
company, and says the legislative policy is being changed
– Company replies, with the assurance that they have already been granted the
exemption and money has already been invested
– Company files a WRIT in Allahabd HC, claiming for 2 directions:
o There must be a formal notification u/s.4(a) of U.P. sales tax act
o Order directing to govt., not to charge any sales tax as promised by the
govt.
– HC can dismiss the petition on the ground that, the Company waived their right by
ceding to the partial exemption (Doctrine of Waiver)
– The govt. stated, that the Company accepted (when they wrote back) the new sales
tax rate.
Bhagwati:
– The true principle of promissory estoppel, therefore seems to be that where one
party has by his words or conduct made to the other a clear and unequivocal
promise which is intended to create legal relations or affect a legal relationship to
arise in the future, knowing or intending that it would be acted upon by the other
party to whom the promise is made and it is in fact so acted upon by the other
party, the promise would be binding on the party making it and he would not be
entitled to go back upon it, if it would be inequitable to allow him to do so having
regard to the dealings which have taken place between the parties, and this would
be so irrespective whether there is any preexisting relationship between the parties
or not.
– The law may, therefore, now be taken to be settled as a result of this decision that
where the Government makes a promise knowing or intending that it would be
acted on by the promises and, in fact, the promisee, acting in reliance on it, alters
his position, the Government would be held bound by the promise and the
promise would be enforceable against the Government at the instance of the
promises, notwithstanding that there is no consideration for the promise and the
promise is not recorded in the form of a formal contract as required by Article 299
of the Constitution
– If the Government wants to resist the liability, it will have to disclose to the
Court what are the facts and circumstances on account of which the
Government claims to be exempt from the liability and it would be for the
Court to decide whether these facts and circumstances are such as to render
it inequitable to enforce the liability against the Government. Mere claim of
change of policy would not be sufficient to exonerate the Government from the
liability: the Government would have to show what precisely is the changed
policy and also its reason and justification so that the Court can judge for itself
which way the public interest lies and what the equity of the case demands.
JGLS | 2015-2020
LEGITIMATE EXPECTATIONS
Regularity, Predictability, Certainty
– Procedural Legitimate expectation: Some procedural right the applicant claims to

possess as the result of a promise or behavior by the public body that generates
that expectation.
– Substantive Legitimate expectation: Applicant seeks a particular benefit or
commodity, such as a welfare benefit or a license, as the result of some promise,
behavior or representation made by the public body.
o Can only arise when the representation is lawful and not ultra-vires.
– There needs to be notice to all parties (Navjyoti Co-op Society v. UOI)
– Does it give substantive right?
o Punjab Communications limited
Navjyoti Co-Op Housing v. UOI – allotment of land to housing society was to be

given on the basis of "First come first served". It was held that the societies who had
applied earlier could invoke the doctrine of 'legitimate expectation'.
– It has been held that person enjoying certain benefits/advantage under the old
policy of the Government derive a legitimate expectation even though they may
not have any legal right under the private law in the context of its continuance.
– An authority ought not to act to defeat the 'legitimate expectation' without some
overriding reason of public policy to justify its doing so. The doctrine of
legitimate expectation imposes a duty on public authorities to act fairly, by taking
into consideration all the relevant factors bearing a nexus to such expectation. If
the authority proposes to defeat a person's 'legitimate expectation' then it should
afford him an opportunity to make representations in the matter.
– Registration number was the manner in which house allocation was being
done. However, they changed this later to date of approval. Even though there is
no expressed rule but since this was the manner in which they were doing it, there
is a legitimate expectation. This is a ground for judicial review. If the defendants
can back their actions with reason it will be justified.
Punjab Communications v. UOI – An expectation could be based on an express

promise or representation or by established past action or settled conduct. The
representation must be clear and unambiguous. However, a change in policy can
defeat a substantive expectation if it can be justified on "Wednesbury"
reasonableness. The decision maker has the choice in the balancing of the pros and
cons relevant to the change in policy. The legitimate substantive expectation merely
permits the Court to find out if the change in policy, which is the cause for defeating
the expectation, is irrational or perverse or one which no reasonable person could
have made.
JGLS | 2015-2020
ADMINISTRATIVE TRIBUNAL
Article 323A: Administrative tribunals.- (1) Parliament may, by law, provide for the
adjudication or trial by administrative tribunals of disputes and complaints with
respect to recruitment and conditions of service of persons appointed to public
services and posts in connection with the affairs of the Union or of any State or of
any local or other authority within the territory of India or under the control of the
Government of India or of any corporation owned or controlled by the Government.
(2) A law made under clause (1) may—
(a) provide for the establishment of an administrative tribunal for the Union and a
separate administrative tribunal for each State or for two or more States;
(b) specify the jurisdiction, powers (including the power to punish for contempt) and
authority which may be exercised by each of the said tribunals;
(c) provide for the procedure (including provisions as to limitation and rules of
evidence) to be followed by the said tribunals;
(d) exclude the jurisdiction of all courts, except the jurisdiction of the Supreme
Court under article 136, with respect to the disputes or complaints referred to in
clause (1);
(e) provide for the transfer to each such administrative tribunal of any cases pending
before any court or other authority immediately before the establishment of such
tribunal as would have been within the jurisdiction of such tribunal if the causes of
action on which such suits or proceedings are based had arisen after such
establishment;
(f) repeal or amend any order made by the President under clause (3) of article
371D;
(g) contain such supplemental, incidental and consequential provisions (including
provisions as to fees) as Parliament may deem necessary for the effective functioning
of, and for the speedy disposal of cases by, and the enforcement of the orders of, such
tribunals.
(3) The provisions of this article shall have effect notwithstanding anything in any
other provision of this Constitution or in any other law for the time being in force.
The Administrative Tribunals Act, 1985
S. 28: On and from the date from which any jurisdiction, powers and authority
becomes exercisable under this Act by a Tribunal in relation to recruitment and
matters concerning recruitment to any Service or post or service matters concerning
members of any Service or persons appointed to any Service or post, [ no court except
–
(a) the Supreme Court ;
(b) any industrial Tribunal, Labor Court or other authority constituted under the
Industrial Disputes Act, 1947 (14 of 1947) or any other corresponding law for the
time being in force,
JGLS | 2015-2020
shall have], or be entitled to exercise any jurisdiction, powers or authority in relation

to such recruitment or matters concerning such recruitment or such service matters.
Analysis:
– Constitutional Problem: Rule of law problem and Judicial review issues since it
takes away the role of the courts
– Administrative tribunal – service conditions of central civil servants
– State admin. Tribunal – service conditions of state civil servants
– Art.136 – SC power to SLP
– From discretion of Admin. tribunal, can allow parliament to make a law which
restricts the jurisdiction of other courts
– S.28 of 1985 Administrative Tribunals Act
– Art.323A – constitution allows parliament to make a law, which allows: admin
tribunal has been established, ousts jurisdiction of HC u/A.226 except SC u/A.136
and industrial tribunal.
S.P. Sampath Kumar v. UOI - Tribunals are supposed to work as substitutes to the
HC. This process has to be Equally Efficient, Equally Accessible and has Equivalent
Jurisdiction as the High Court. The vesting of the power of judicial review in an
alternative institutional mechanism, after taking it away from the High Court, would
not be a violation of the basic structure of the Constitution.
Issue: Is S.28 constitutional?

– Can the jurisdiction of tribunal oust jurisdiction of HC u/a.226 and SC except
u/art.136, for any service related matters?
Bhagwati:
– There cannot be a law which abrogates the power of judicial review by courts in
totality
– However alternative institutional mechanism can be created so that it is an
efficient substitute of the HC.
o It must have equal capacity by maintaining a proper balance between
judicial members and administrative members
– Then shifted to the constitution of the tribunal so that it can be called an effective
substitute
Misra J.:
– If we allow the writ jurisdiction of the HC or appellate jurisdiction of HC, it will
render the admin tribunal futile because you are allowing a second redressal
mechanism.
JGLS | 2015-2020
L.Chandra Kumar v. UOI - It is necessary to provide tribunals with the power of

judicial review. Jurisdiction of the tribunals would be subject to the review of the
High Court under Articles 226/227. Tribunals will function as a supplementary body
and all decisions will be subject to scrutiny.
– Whether the power conferred to Parliament by art.323-A, to totally exclude the

jurisdiction of ‘all courts’, except that of the SC under art. 136?
– Whether statute (rule) can be questioned in tribunal?
– Can a single administrative member decide upon a dispute in tribunal?
o No. Bhagwati – the composition requires a judicial member.
o Meaning either a sitting judge of HC etc. someone who has held a judicial
post
– Andhra Pradesh HC: “We are not bound by Sampath Kumar.”
– When can a HC say so?
o Per Incuriam – when court has not taken into consideration law, facts or
some other relevant considerations
o Thus HC said Sampath Kumar is a per incuriam decision, since it didn’t
look at Indira Gandhi v. Raj Narrain, Kesvananda Bharti on Judicial
Review.

Admin Law Notes 1

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Admin Law Notes 1

Uploaded by

Copyright:

Available Formats

Admin.

Law Parvathi Bakshi

Article 73 of the Constitution

Ram Jewaya Kapur v. State of Punjab

Formal Rule of Law Substantive Rule of Law

1. ADM Jabalpur v. Shivkant Shukla

President declared emergency due to internal disturbances. And promulgated the

2. Field v. Clarks 1982

3. Panama Refining Company v. Ryan 1935

4. In Re Delhi Laws Act AIR 1951 SC 332

(iii) does not create another parallel legislative body

(Mukherjee) – Indian system of governance is based on the British parliamentary

6. Jatindra Nath Gupta v. Province of Bihar

7. Hamdard Dawakhana v. UOI

Is the delegation constitutional in that the administrative authority has been

8. Gwalior Rayon Co v. Asst Commr of Sales Tax

9. Corporation of Calcutta v. liberty Cinemas,

10. Pandit Banarsi Das Bhanot v. State of MP

11. Devi Das Goapala Kishnan v. State of Punjab

12. M. K. Papiah & Sons v. The excise Commissioner

13. Harishankar Bagla v. State of MP

14. Raj Narain Singh v. Chairman

– When the Executive selects any part or section of an enactment to extend to an

15. Lachmi Narain v. UOI

Removal of difficulties clause: in pursuance of legislative policy of act, the

Control of Delegated Legislation

19. Atlas Cycles v. State of Haryana

20. Dwarka Nath v. Municipal Corporation of Delhi

21. V. Sudeer v. Bar Council of India

Govindlal patel v. The agricultural produce market

Harla vs. State of Rajasthan

22. Banwarilal v. State of Bihar

23. Naraindas v. State of Madhya Pradesh

– Madhya Pradesh Prathmik Middle School Tatha Madhyamik Shiksha (Pathya

24. Chintaman Rao v. State of Madhya Pradesh (unconstitutional Parent Act)

– Central Provinces and Berar Regulation of Manufacture of Bidis (Agricultural

25. M/S Dwarka Prasad v. State of UP (DL Unconstitutional)

26. Himmat Lal v. Commissioner of Police

State of MP vs Tikamdas (Retrospective application of DL) - There is no doubt that

AV Nachane vs UOI - Previously, a settlement was entered with the employees

superseded by a fresh settlement, an Industrial award or relevant legislation. These

Administrative Discretion is a statutory power conferred on a public authority to

Ø Mala fide – a power is exercised fraudulently if its repository tends to achieve an

Ø Improper purpose – as distinguished from malafide, improper purpose may not be

Hukum Chand v. UOI - Where a power is required to be exercised in a

HD Vora v. State of Maharastra - The power of requisition is exercisable by

Ø Irrelevant Considerations – The authority is not expected to take irrelevant

Ø Leaving out relevant considerations – Just as the administrative authority cannot

Ø Unreasonableness – If the power is exercised unreasonably, there is an abuse of

Wednesbury’s Doctrine: The principle of reasonableness

Associated Provinical Picture House v. Wednesbury – Irrationality or

Interference is permissible when it is found that the decision was illegal or

Doctrine of Proportionality (Strict Scrutiny)

Om Kumar v UOI – ‘Proportionality’ is a more liberal approach towards

– Reasonable restrictions under Article 19(2) to (6) could be imposed on the

PRIMARY REVIEW SECONDARY REVIEW

Imposing fetters on discretion (self-imposed rule): Where the authority imposes

PRINCIPLES OF NATURAL JUSTICE

Classification of Administrative Function:

– Lis – is a dispute between two parties

AUDI ALTERAM PARTEM NEMO JUDEX IN CAUSA SUA

– Right to present the case and evidence by the